Chief Justice Rehnquist: We will hear arguments first this morning in the City of Springfield versus Lois Thurston Kibbe.

You may proceed whenever you're ready, Mr. Pikula.

Mr. Pikula: Thank you, Mr. Chief Justice, and may it please the Court:

At issue in this case is the standard for municipal liability under 42 U.S.C. Section 1983.

The facts center on the fatal shooting of a fugitive who had abducted a woman, who had avoided police at two roadblocks during a chase through the streets of the City of Springfield.

There are three reasons why the First Circuit's opinion... decision should be reverse.

First, there is no unconstitutional policy in this case.

Second, gross negligence is an insufficient standard of liability.

And third, the evidence is insufficient to support the jury verdict against the city.

With regard to the first reason, since Monell interpreted Section 1983 to impose policy based municipal liability, an unconstitutional policy has been prevalent in cases where this Court has approve municipal liability.

The First Circuit has expanded municipal liability beyond the limits of this Court's decision by imposing liability without the requirement of an unconstitutional policy.

The explicit requirement of an unconstitutional policy would draw a line which determines causation.

For example, when a municipal employee acts pursuant to an unconstitutional policy, a constitutional deprivation results, and the city would be responsible for that deprivation.

Unknown Speaker: Mr. Pikula, is a policy unconstitutional if it permits but does not explicitly authorize constitutional violations?

Mr. Pikula: I believe a policy is unconstitutional if it requires the conduct which causes a constitutional violation, or permits it.

Unknown Speaker: No, my question was, if it permits.

Mr. Pikula: Or permits the conduct which is unconstitutional.

Unknown Speaker: Did the Court of Appeals, Mr. Pikula... excuse me... say what the unconstitutional conduct, what the constitutional violation was?

Mr. Pikula: I believe a Fourteenth Amendment violation of the Constitution was at issue.

Unknown Speaker: Well what... more specific.

I mean, the Fourteenth Amendment... again, I'm not asking you for your opinion.

Did the Court of Appeals get any more specific than that?

Mr. Pikula: No, the jury instruction did charge on a violation of due process, in violation of the Fourteenth Amendment.

The--

Unknown Speaker: How far do you go in not taking necessary steps before you are in effect permitting?

Suppose a municipality is running a jail, and it just doesn't take any steps to buy food for the jail, so that the prisoners are not getting any food.

Now there's no written policy that says, it's okay not to feed the prisoners.

But anybody would know that you need food there.

Would that be a policy?

Mr. Pikula: --Well, I think a different constitutional amendment would be in issue in a prison case.

But in terms of whether the Constitution imposes affirmative obligations upon a city, I don't believe that it does.

It's our position that the Constitution is a charter of prohibitions, which... which states that the city should not permit its officers, or instruct them, to violate the Constitution, or instruct them in conduct.

Unknown Speaker: You said a different constitutional... I understood you to say... provision would be involved in a prison case?

Now, in addition to drawing a line which indicates causation, an unconstitutional policy requirement would provide guidance to litigants in evaluating liability; would prevent liability based on respondeat superior; and would prevent liability based solely on the perception of the city as a deep pocket.

Now, with regard to the second reason for reversal in this case, gross negligence--

Unknown Speaker: Before you leave the first, I'm not sure I completely understand your view.

Would it, in your view, be constitutionally permissible for the city to employ totally untrained people and just said, we need a hundred law enforcement officers.

Here are the guns.

You go out and avoid law and order... you know, just maintain law and order.

And just did nothing else.

But he said, this is... you are our policemen.

We'll pay you X dollars.

Period.

Would that be an unconstitutional policy, or not?

Mr. Pikula: --I don't believe so, no.

It would certainly be a violation of Massachusetts state law.

Unknown Speaker: But it would be... it would be unconstitutional if they, in addition to that, said, everytime you see anybody running away, you just go ahead and shoot to kill.

Mr. Pikula: Yes, sir.

Unknown Speaker: Then it would be bad.

They have to give an affirmative instruction to do something wrong?

Mr. Pikula: Or an instruction such as was in issue in Tennessee v. Garner, where that policy certainly intended that deadly force be used against a nondangerous felon, even though they didn't go out and say, shoot every nondangerous fleeing felon, that conducted was permitted by the statute in that case.

Unknown Speaker: Well, what if the municipality knows that its police are constantly using lethal force?

Mr. Pikula: Well, that--

Unknown Speaker: You know, there are several people killed every month.

And it's notorious, it's well known.

The city takes no steps to stop it.

But it doesn't have a memorandum that says, good work.

It just doesn't take any step whatever to stop it.

Mr. Pikula: --In that situation, we certainly have some sort of pattern of misconduct--

Unknown Speaker: By the officers, but not by the city.

Mr. Pikula: --No, but you may be able to infer some sort of conscious decision by policymakers in not responding to that prior patter, which might give them some knowledge that there was something wrong.

But, for instance, in a case like this, we have only a single incident where--

You're saying that anybody who saw that and took no step to stop it would be so grossly negligent that you can attribute almost willful permission from it?

Mr. Pikula: --Well, in any case, before anything could be attributed to a policymaker, some conscious decision on the part of a policymaker needs to be shown.

Without that, it would just be liability based on respondeat superior.

Unknown Speaker: What if the only decision was not to fire any of these officers?

A, not to fire them; and B, not to give them any more training?

Mr. Pikula: Again--

Unknown Speaker: If they're on notice that they're very poorly trained, and they're very hazardous to the general public.

Mr. Pikula: --If there is some notice that they are some hazard to the general public--

Unknown Speaker: Well, what if the notice takes the form that we don't think you have an adequate training program for your police.

Because there have been a lot of mistakes made.

And then they still don't train.

Would that failure to train be an unconstitutional policy?

Mr. Pikula: --I don't believe so.

If there was a prior pattern of misconduct... if this Court does not choose to impose a standard of requiring an unconstitutional policy, if there's a prior pattern of misconduct, at least you could infer some knowledge on the part of policymakers in that they had an opportunity to respond and prevent some future action.

In this case, we have simply a single incident which occurred very... during a very short period of time; it did not provide any opportunity for policymakers to respond or prevent.

Unknown Speaker: Well, that goes to whether the negligence is gross or not.

It doesn't go to the principle of whether gross negligence alone is enough to establish the kind of intent you need.

You're just saying, look, if nobody has been dying out there, the city is not necessarily aware of the problem.

But once that's been happening, it's very much aware, and it becomes gross negligence.

Mr. Pikula: Well, gross negligence is an insufficient standard for liability, because it does not involve any cognitive element which is necessary to show any state of mind on the part of policymakers.

Unknown Speaker: Well, I'm not sure I agree with you.

It seems to me that's precisely what gross negligence is, negligence that approaches such a point that you almost have to intend the result in order not to have done something to stop it.

Mr. Pikula: The violation of the due process clause has historically involved deliberate or conscious decisions rather than a lack of due care.

A lack of due care has not historically been the type of conduct which is implicated in the Fourteenth Amendment.

It's not the sort of abuse of government conduct which the Fourteenth Amendment was designed to prevent.

On the other hand, decisions which are conscious, or deliberate, are precisely which the Fourteenth Amendment is designed to prohibit.

Unknown Speaker: Well, Mr. Pikula, if the city policymakers adopt an inadequate policy with regard to a specific matter, and if they know that it is inadequate, is that enough for the determination of a policy?

Mr. Pikula: I don't believe inadequate training, in itself, is enough for a constitutional violation.

Unknown Speaker: If they adopt a policy for police training which is in fact inadequate, and if they know it is inadequate, is that enough?

Mr. Pikula: Only if that training policy intends conduct which violates the Constitution, or permits conduct which violates the Constitution?

Unknown Speaker: Well, by definition, if it's inadequate, it's going to permit conduct which would violate the Constitution.

Mr. Pikula: Not necessarily.

Unknown Speaker: Doesn't it go to fault rather than to the existence of a policy?

I find your argument difficult to follow.

Mr. Pikula: I believe that the issue of fault on the part of the city is shown when you show that policymakers have made some sort of conscious decision, or acted deliberately, rather than inferring that they have done something without any evidence to show policymakers have acted at all.

Then liability is based solely--

Unknown Speaker: You don't take into consideration failure to act?

You do not take into consideration failure to act on the part of the city?

Do you?

Mr. Pikula: --I think historically failure to act has not been the basis of constitutional violations.

Unknown Speaker: Failure to instruct the police on the proper methods of protecting people's rights is not required?

Mr. Pikula: Again, it would be a violation of state law in Massachusetts.

And certainly, there may be a duty to do so in ordinary tort law.

But to distinguish a constitutional violation from an ordinary tort--

Unknown Speaker: Well, for a city to hire a man, give him a gun, tell him he's entitled to kill somebody and turn him loose, that's--

Mr. Pikula: --No, certainly not.

Unknown Speaker: --and nothing else, that wouldn't be a violation of the law?

Mr. Pikula: No, under the Constitution, as I said, I don't believe there is an affirmative duty to train.

Unknown Speaker: xxx tell him, don't take this gun that I give you and unwillingly kill somebody?

Mr. Pikula: The Constitution... or I don't think there's any evidence in this case or in any other case which shows that just giving someone a gun is more likely than not... likely to result in constitutional violations.

It's when you condone, or tolerate, behavior which violates the Constitution, which is--

Unknown Speaker: Well, now you're going to use the dog bite rule.

One shot's okay, but don't do it twice.

Mr. Pikula: --No.

It's certainly... if one shot was fired pursuant to an unconstitutional policy, that would be sufficient to impose liability.

On the other hand, if all we have is one shot that's fired, it's really uncertain whether or not that shot was fired pursuant to any policy to violate the Constitution, rather than just the conduct of... or misconduct of an employee.

And I believe that would go beyond... or cross over into respondeat superior liability, basing liability solely on misconduct.

Unknown Speaker: I still get the feeling that your position is, the only way the city can be liable is if the city says, specifically, you don't need to follow the Constitution; do what you please.

That's the only way the city's liable.

Mr. Pikula: No, certainly not.

Unknown Speaker: Well, how else?

Mr. Pikula: Well, for example, in Tennessee v. Garner, if a city adopted a policy which permitted deadly force to be used against a nondangerous fleeing felon, that would violate the Constitution under Tennessee v. Garner, and would be an unconstitutional policy, although not unconstitutional on face.

The fact that it permitted the unconstitutional conduct would be--

Unknown Speaker: Let me phrase the question just a little different.

I'll phrase it affirmatively.

Supposing city fired all their police officers, we need a clean sweep of our police force.

We hire a brand new bunch of officers.

They all have to be military veterans.

They all have to be trained in how to handle weapons.

They all have to be trained in the martial arts, and how to wear uniforms neatly, and how to march.

That's all they're trained.

And then they just turn them loose in the city.

Don't tell them how to serve search warrants, how to arrest people, how to stop vehicles, or anything.

They just train them to the extent I described.

And then there are a lot of mistakes made thereafter.

Would there be a constitutional violation or not?

Mr. Pikula: --I don't believe so.

Unknown Speaker: xxx I'm not sure what you can say about it except that it happened.

The instruction at trial specifically said that the jury could find liability if the city had failed to train, supervise or discipline, and if that failure is reckless or grossly negligent.

And the city did not object to that.

In fact, the city itself asked for an instruction which included the statement that the plaintiff has the burden of proving the city was not merely negligent in its training, but grossly negligent in failing to train its police officers.

And now you're arguing before us, although you asked for that instruction, that that is not enough.

Now why should we hear this at this point?

Mr. Pikula: I certainly wouldn't ask for that instruction again.

Unknown Speaker: I know that.

[Laughter]

Mr. Pikula: It may have been unartfully drafted on my part.

However, I believe the issue is preserved with regards to our motion for directed verdict, and our motion for judgment notwithstanding the verdict.

Unknown Speaker: Well, then, the Court of Appeals didn't foreclose review on the basis that you didn't object.

They just reached the merits are moved against you?

Mr. Pikula: That's correct.

They... that was not brought up by the First Circuit at all.

Unknown Speaker: What was not brought up?

The failure to object.

Mr. Pikula: The failure to object.

They did reach a jury instruction in question... a jury instruction question, and did discuss it in their opinion.

Unknown Speaker: Rule on it, they ruled on it and approved it.

They approved it.

Mr. Pikula: They approved the instruction, although they noted, it could have certainly been more detailed.

They felt--

Unknown Speaker: But that was the instruction on proximate cause, not the instruction Justice Scalia is talking about.

Did you challenge this point before the Court of Appeals, the grossly... did you make the argument before the Court of Appeals that gross negligence alone would not suffice?

One of the points was that even grossly negligent training wouldn't be enough.

Unknown Speaker: And what about at the Court of Appeals?

Mr. Pikula: At the Court of Appeals, it was not specifically laid out in our brief that way, although we did ask for some higher standard of culpability.

And we were searching for a standard.

And as I said, we were kind of unsure what the standard should be.

And then I think this decision in... the Court's decision in Tuttle clarified that.

Now--

Unknown Speaker: May I ask this before you proceed?

What evidence was there of gross negligence?

Mr. Pikula: --None whatsoever.

There was no showing that the city's training violated any recognized standards.

Unknown Speaker: If there was no evidence, why was the instruction not objected to?

Mr. Pikula: Well, again, once the trial judge had denied my motion for a directed verdict, some jury instruction did have to be put forward, and therefore--

Unknown Speaker: That's one you wish you had objected to?

Mr. Pikula: --One I wish I had objected to, yes.

Unknown Speaker: xxx what Justice Scalia read you was the instruction that you requested, wasn't it?

Mr. Pikula: That's correct, Justice.

Unknown Speaker: And then... how would you object to it after you requested it and your request was granted?

Mr. Pikula: I--

Unknown Speaker: How did your motion for a directed verdict put it in issue.

Mr. Pikula: --The first point... our first point... our first point in our motion for a directed verdict was that there was no proof of an unconstitutional policy.

Our second point had to do with, there's no evidence of negligent training.

And our third point was, there was no evidence... or even grossly negligent of a single officer would be insufficient.

Something of that nature.

I believe that's specifically what it was.

Unknown Speaker: Well, you never retracted the request for the gross negligence instruction, did you?

Mr. Pikula: No, I did not.

But I should point out, I believe last term in Tuttle, the same argument was made about the failure to object to jury instructions.

And the Court noted, it was not brought up in the opposition to the petition for cert. I believe the same issue is also--

Unknown Speaker: Yes, and we had something to say about that situation in the opinion in the Tuttle case, did we not, that where the respondent fails at the certiorari stage to bring out the reasons why the court might not be able to reach a point made in the petition for certiorari, that unless it's a jurisdictional point, the court will consider it waived?

Mr. Pikula: --That's correct.

Unknown Speaker: Of course, they did bring it out in the brief in opposition, though, didn't they?

They did point out the instruction.

Mr. Pikula: Not in the brief in opposition to cert, but in the brief on the merits.

Unknown Speaker: Well, in the brief in opposition to cert, they raised the question about the instructions too, didn't they?

Didn't they also point out the instruction was proper?

Mr. Pikula: Well, I don't believe they raised the 51(a) objection.

Now, there are three reasons why this jury verdict against the city is not supported by sufficient evidence.

As I noted, this case involved only a single incident, which would not provide any opportunity for policymakers to respond to the situation or have any knowledge that there was anything wrong.

Unknown Speaker: Let me go back to the instruction problem.

Is it not correct that in your petition for certiorari, you did not challenge any instruction?

Mr. Pikula: We challenged... no, that's correct.

We challenged the old standard for inadequate training.

Additionally, the jury verdict is not supported by sufficient evidence because it does not involve... there was no evidence of any conscious decision by a policymaker.

And as I also noticed, the jury's verdict is not supported by sufficient evidence in that there was no evidence that the city violated any recognized training standards.

The verdict is based on nothing more than speculation.

And if the decision is allowed to stand, it will allow the imposition of municipal liability and a standard of proof which is, in essence, respondeat superior.

With the Court's permission, I reserve the remainder of my time.

Argument of Terry Scott Nagel

Chief Justice Rehnquist: Thank you, Mr. Pikula.

We'll hear now from you, Mr. Nagel.

Mr. Nagel: Mr. Chief Justice, and may it please the Court:

In this case the City of Springfield is asking the Court to reverse a modest jury verdict in favor of Clinton Thurston who was shot, beaten, and then denied medical care, and died in Springfield.

The scope of this review is necessarily somewhat limited narrowly by the Seventh Amendment and Rule 51, and I'd like to clarify a few of the points that you brought up in the questions to Mr. Pikula regarding exactly what was preserved for review in this case.

Regarding gross negligence in particular, that issue, in our view, is completely waived in this case.

There was no objection to the instruction regarding gross negligence.

Unknown Speaker: Well, Mr. Nagel, in your opposition to petition for writ of certiorari, the orange, did you bring to our attention the reasons that you now adduce for not reaching the points?

Mr. Nagel: No, Your Honor, that would have been impossible, because my brother, Mr. Pikula, didn't put it in his petition for certiorari.

There's not a mention of gross negligence in the petition for certiorari.

On page 15, the word is used once with apparent approval, saying that we failed to meet the burden of proof.

But in fact, in the Court of Appeals, the city litigated on the theory that gross negligence was a proper standard.

If I can just read you one sentence from their brief from the Court of Appeals, it says: To sustain an action under Section 1983 on the theory of negligent training, training must be nonexistent, or reckless, or gross, palpably or culpable negligent before liability will attach.

It says: Monell has been interpreted to hold that a municipal policy of authorizing or condoning police misconduct can be inferred where the municipality has been gross negligent in the supervision or training of its police force.

That's reproduced at page 13 of our brief.

And that's from their brief in the Court of Appeals.

Unknown Speaker: Well, then, what you're saying is not that we can't reach the points that they raised in their petition for certiorari, which we granted, or anything fairly subsumed under it, but that the instruction point that they're making is outside the scope of even those points?

Mr. Nagel: Yes.

They didn't object to the instruction, and now they're arguing that... on appeal, on a motion for j.

n.

o.

v, under which, of course, we're entitled to have the evidence construed in our favor, they also want a standard which they argued against... which the requested against at trial.

Because they requested a gross negligence standard.

This is not only a matter of wavering--

Unknown Speaker: What did the Court of Appeals decide?

Mr. Nagel: --About that issue?

Unknown Speaker: No, about... didn't they say that... didn't they say that... talk about the standard for determining when there is a policy about--

Mr. Nagel: They agreed with the gross negligence standard, but it wasn't litigated in the First Circuit, because both sides agreed at the First Circuit.

It wasn't before... it wasn't anything we were on notice of until we received the City's brief in this case.

Unknown Speaker: --Well, do you say then... but I suppose the issue is fairly here with respect to whether the evidence shows that there was gross negligence?

Mr. Nagel: Well, certainly.

There was a motion for j.n.o.v.--

Unknown Speaker: Yes.

Mr. Nagel: --And I don't quarrel with that.

What I quarrel with is the idea that this case is presented to the Court with a cert-worthy case in which the review the standard of negligence and whether training can ever be a claim, which is also something that was not litigated below.

Now, it may be that the Court wishes to reach that question, and I'm prepared to address that question.

But I want you to be aware that as far as the gross negligence question in particular, there was nothing below to indicate that this was going to be an issue in the case, and nothing to put us on notice when we filed our opposition to cert.--

Unknown Speaker: Well, the petition for cert said... says the following, among other things: The Court in Tuttle expressed doubts as to whether inadequate training can ever be a policy or custom under Monell.

However, a trend in the lower courts permits municipal liability based on inadequate training.

This trend undermines the standard of liability established by Monell and its progeny.

Without further definition of this standard, lower courts will continue blah-blah-blah-blah.

Mr. Nagel: --It's true.

And as far as inadequate training, I think we're on a different footing than the gross negligence question.

Because just the question presented in bold face type on their petition says, can failure to train ever be a claim?

And we're happy to talk about that.

Unknown Speaker: I see.

Mr. Nagel: But the gross negligence question simply, as far as I can tell, isn't properly--

Now, there are two issues, and I'd like to clarify also.

There was question, I believe, from Justice Rehnquist regarding what the Court of Appeals found.

Mr. Chief Justice, I believe you asked that question on the basis of liability.

There were two theories of liability in this case.

This is not the Tuttle case.

There were two theories.

One was that there was an explicit unconstitutional policy of the city.

And the other was that there was failure to train amounting to gross negligence.

Unknown Speaker: And what was the unconstitutional policy in this hypothesis?

Mr. Nagel: Both courts below... Chief Judge Frank Freedman of the Massachusetts District, and the Court of Appeals... found that there was evidence sufficient to warrant a finding that it was a policy of the Springfield police force to allow the use of deadly force at the first moment at the first moment at which it was technically... appeared technically permissible to do so under the rules.

The judge made a memorandum finding with regard to a motion for a new trial on the part of--

Unknown Speaker: And what was the view below, what was it that was unconstitutional about that policy?

Mr. Nagel: --Well, there was evidence at trial which indicated that the police had operated under a rule which allowed them to create a danger, or create the appearance of an attack, and then use deadly force.

The shooting... and I must stress, there are three shootings, and two beatings in this case... but the last shooting in particular in this case, when the man had a bullet through his head at a distance closer than I am to--

Unknown Speaker: And what was he doing at that point?

What was the--

Mr. Nagel: --He was driving down the street in his car, with a woman in the seat--

Unknown Speaker: --But there were a few more facts attending it than that, weren't there?

Mr. Nagel: --Well, it depends.

We are here on a motion for j.n.o.v. And there was plenty of evidence from which you could have found... or with the jury, I should say, because that is who we're concerned with... the jury could have found that Mr. Thurston was driving along at a legal speed straight down the road, and the motorcycle came up next to him and shot him in the head because he wouldn't stop.

And there's a police rule which appears on its face to allow that, a rule that is completely at odds with Garner, which would be rule 2813, which says that when you're in a motor vehicle and you fire a gun, you can shoot a dangerous felon fleeing, or a felon; you can shoot a nondangerous fleeing felon on the face of this rule.

Unknown Speaker: And your claim is that your client, or your client's predecessor, was not a... was a nondangerous fleeing felon?

Mr. Nagel: Certainly the jury could have found that.

There was testimony from which they could have found, he never swerved his car at the motorcycle.

Everyone testified he was driving at speeds from 35, 25 to 45 miles an hour.

There just--

Unknown Speaker: He also went through a roadblock, didn't he?

Mr. Nagel: --He went through a roadblock that was set up over a crest of a hill where he had two seconds when he came over the hill.

And as he came over the hill, there was a policeman standing in the road in front of him he drew his gun and fired.

And that was another example of this triggering rule, you can create a colorable attack.

"I'll stand on the road over the crest of the hill and then shoot. "

And he drove past that at... I think he approached at, they said, at 35 to 40 miles an hour.

Unknown Speaker: And so you say, that part of your hypothesis, the unconstitutional conduct is based on our decision in Tennessee v. Garner?

Mr. Nagel: Which part, you mean the rule?

Unknown Speaker: Well, the... yes.

Mr. Nagel: Well, actually at the time it would have been based on Commonwealth v. Klein, which tracks Garner almost exactly.

But it was the Massachusetts case which, I believe, the instructions to the jury were based on.

Which track the elements in Garner precisely.

And the jury heard that instruction.

They're presumed to have followed it.

And then they have the rule book.

And they look at a rule that says, you can shoot a felon or a dangerous fleeing felon.

They could have concluded that there was a de jure policy that was unconstitutional.

And besides that, there's a second theory, which is, of course, failure to train, which I think may be what got us here today.

And--

Unknown Speaker: Well, failure to train doesn't deal with whether or not there was a 1980... there was a violation of a constitutional right.

That's your Monell aspect of the case, isn't it?

Mr. Nagel: --Yes.

Unknown Speaker: I mean, you could have a failure to train, and if no constitutional right was violated as a result of that failure to train, it doesn't make a bit of difference.

Mr. Nagel: That's true.

And there is testimony in this case that the officers were not trained at all with regard to shooting at fleeing vehicles.

There's testimony directly on that point, which takes us right outside of Tuttle.

I mean, Tuttle... the only thing in Tuttle, because of the defective instruction, and I emphasize, and it's reproduced in the addendum to our brief, there was not a Tuttle instruction in this case.

The... if I again can read you just one sentence.

The... Judge Freedman instruction: An incident of excessive force on the part of police officers, standing by itself, is insufficient to find the City of Springfield liable under Section 1983.

Now, they're presumed to have heard and understood and followed that instruction.

So they had all of the things that went on on this day, and they had testimony directly on point from a number of police officers that they had received no training: no training with regard to shooting at fleeing vehicles; no training with regard to shooting from vehicles; no training about roadblocks beyond, stand on the road and put your hand up.

And given the instruction, which is sufficient under Tuttle, and that testimony... that is what we were litigating in the First Circuit, frankly.

We went up to the First Circuit on a Tuttle issue.

And when the City wrote its brief in the First Circuit, Tuttle was still pending here.

It came down.

We had a reply brief, which also didn't talk about gross negligence, or the necessity of an underlying unconstitutional policy, or some of the other issues we're talking about here today.

But we're right outside of Tuttle on that issue.

But I would assume the Court wants to consider the training question, whether training can ever be a claim.

And I would just like to invite your attention, the fact that there's really no reason to assume that there's a need for an unconstitutional underlying policy.

There were a lot of questions about that.

Originally, as I understood this case to be formulating, we were talking about whether training would ever be a claim.

But if the inquiry is whether the underlying training policy itself has to be unconstitutional, I would submit to the Court that in that direction lies even more confusion than we need to engage in.

There's been a problem in the Monell area that the temptation really is to develop a jurisprudence that's specific to police cases.

I don't think there's any reason to do that.

And what Mr. Pikula said regarding the question... I believe it was from Mr. Marshall, from Mr. Justice Marshall, and Justice Stevens also asked, regarding the effect of no training.

And his answer was to the effect that the inquiry seems to collapse into one of causation.

In other words, if there's no training at all, and it causes a constitutional violation, then why do we need to bifurcate the inquiry into whether the policy itself is unconstitutional or the resulting activity of the police is unconstitutional, when the statute itself, as interpreted by Monell, says that if A causes B to inflict a tort on C, then B's tort becomes A's tort.

I mean, that language is right in Monell, and it comes right from the statute, which says that any person who causes... who subjects or causes to be subjected to a constitutional violation.

Unknown Speaker: Well, wouldn't that allow the finding of liability just on the basis of respondeat superior, so far as the city is concerned?

Mr. Nagel: No, I don't believe it would.

I think that a better traditional category of tort law to look to is agency law, which--

But there's no reason when respondeat superior law doesn't apply that all of agency law has to be thrown out, as the Vincent case mentions.

And if you take that part of the restatement of agency... or general agency law that holds that a principal is responsible for the torts that occur due to his negligent training, supervision or selection of agents, then you're back to the language of the statute again directly.

Because that is talking about causation.

That is something the principal has done.

And that's something the city has done in this case.

Its negligent training of their agents.

And I just mention in passing that one of the things that was alleged in the complaint four years ago in this case is that the police were the servants, the agents, and the employees of the City of Springfield.

That was admitted in this case.

There's no reason to treat them as anything else.

Now that, unfortunately that part of the answers appears to have been omitted from the Joint Appendix.

But I'm sure the original answer is here on file.

As to the question of gross negligence, while we're on the subject of the language of the statute and Monell, I would also just invite your attention to the fact that if you should choose to reach the question of what level of culpability, what the mental state has to be under Section 1983, there's no reason to go beyond simple negligence, Davidson and Daniels notwithstanding.

Those cases weren't dealing with municipal liability.

Those were dealing with the simple negligence of public officials or government officials dealing directly with the person injured.

But the language of Section 6 is worth another look.

That is the language, of course, which in Justice Brennan's opinion in Monell was central, it was the lynchpin to the argument about respondeat superior.

And footnote 57 of that case says: We look to the language of Section 6 to find the contours of municipal liability.

Well, the language of Section 6--

Unknown Speaker: xxx someone is hurt by... as a result of negligence by a city official at a supervisory level, there's a claim for constitutional violation?

Mr. Nagel: --At a supervisory level, if we're understanding that word to mean the same thing.

In other words, if the chief of police is given the power to train... has delegated the power to train all the police officers, and he gives them guns and says, go out and catch bad guys, and doesn't give them any other instruction than that, I would say yes, that liability would attach to the supervisory official.

Now, there would be inquiries about whether he was asking on his own, or whether he was authorized to do that for the municipality.

But there's no reason to go beyond that level of negligence--

Unknown Speaker: What about negligent construction of a building, of a city building, under the supervision--

Mr. Nagel: --Under 1983?

Unknown Speaker: --Yes, under the supervision of a city manager?

Mr. Nagel: Well, I--

Unknown Speaker: And a piece of the building falls off and kills somebody, depriving him of life.

Mr. Nagel: --Of course that has so little to do with the police conduct area, where you know you're dealing with a dangerous instrumentality, firearms, so forth, that you're unleashing on the populace, and that if the people aren't trained, the constitutional violations are not only foreseeable, they're almost inevitable.

Unknown Speaker: Is there any constitutional violation in Justice Scalia's hypothesis?

Mr. Nagel: Is there... is there deprivation, you mean?

Unknown Speaker: Well, is there any... I mean, is there any constitutional violation if the city building in structure has negligently supervised the construction of a building, and the building collapses on somebody?

Mr. Nagel: I doubt it.

Unknown Speaker: Well, I would hope you would doubt it.

Mr. Nagel: Yes, because we would be--

Unknown Speaker: Why is that, when you've urged a negligence theory?

You have negligence, and you have a deprivation of life, without due process of law, I presume.

Mr. Nagel: --I think it's because, in the area of police brutality, which is a central governmental function... or police... the police are a central governmental function, one hopes... you have a different standard of--

Unknown Speaker: I don't see anything in there about police.

I don't see how you can read police in.

What you may be able to read in is the necessity of intentionally depriving somebody of life.

That's what makes it a constitutional violation.

If you intentionally do it, and then you may argue, well, it's almost the same as intentionally doing it to do it with gross negligence.

Because there's very little difference between that and intent.

And there you have a theory that separates constitutional violations from ordinary torts.

But when you argue before us that only a negligence standard is necessary, I don't know how you distinguish the negligent construction of a building from negligent action by a police officer.

Mr. Nagel: --Well, I don't think it would be a deprivation under color of state law.

I don't think that the supervisor is in the same relationship to the person who has a building fall on them as a police officer who shoots a fleeing felon.

Unknown Speaker: Well, certainly, there are a good many cases out there in these situations that have applied a deliberate indifference standard.

And doesn't that standard come a lot closer to what the Court was talking about in Davidson and Cannon.

Mr. Nagel: --Well, Davidson and Cannon, as I understood it, was ruling out simple negligence as to officials.

It's true that Leite v. City of Providence used the words, gross negligence amounting to deliberate indifference.

And that language has been adopted in many cases.

Some cases don't, though.

Some say, gross negligence.

Some say, recklessness.

Some cases have avoided the question altogether.

The fact is that every circuit that has considered the question has found that failure to train is a basis of claim.

And the majority of them have found gross negligence to be a sufficient basis.

But to get back to the language of the statute if I may just for a moment, Section 6 is... of the statute, which is now 42 U.S.C. 1986, is written now in the language of simple negligence.

That's the statute which imposes liability on anyone having power to prevent constitutional deprivations, who neglects or refuses to do so.

And the measure of damages there is the damages which reasonable diligence could have prevented.

Now that seems to be the language of simple negligence.

If the Court is going to impose gross negligence, I think it will have to do it outside that part of the statutory history.

The... there is also statutory history in the Congressional Globe, which is cited in the brief of one of the amicus curiae, regarding the fact that this statute will impose liability for the defaults of the municipality.

Again, language of simple negligence.

So there's really no reason to go beyond a gross negligence standard.

Finally, I would just like to come back again to the Tuttle issue, or the Tuttle nonissue in this case.

The basis of the decision in Tuttle seemed to be that the single incident of outrageous brutality on the part of the police officers was not a logical basis on which an inference of failure to train could be drawn, that single thing... that single shooting, because you could just as easily infer that the man who did the shooting was deranged.

"One bad apple", was the phrase.

In this case, you have three shootings in three separate places, the third one being presumably the fatal bullet, followed by a beating inside the man's car, which was justified again on the basis that he had failed to surrender.

He was unconscious and therefore he had failed to surrender, and there's an officer who testifies to that.

Another beating when he was pulled from the car.

And then man is transported to the hospital.

And whoever fired the fatal shot withholds the information that the man has been shot.

And we know that Theodore Perry has shot him from eight feet away... and ballistics shows that it's his bullet... couldn't have not known that.

The inference that arises from that kind of a broad sampling is different, by far, than one bad apple kind of analysis.

We're talking about a whole collection of people who've engaged in this conduct.

And on top of that, we have testimony that these men have not been trained.

Now, there were some questions about, whether no training at all can be a basis for liability.

Obviously, the unleashing of the police officers on the city, having them be armed, with no training at all, and with rules that tell them they can shoot nondangerous fleeing felons, is foreseeably going to cause this kind of harm.

And for that reason, the motion for judgment notwithstanding the verdict, should remain denied.

We should affirm the Court of Appeals and the court... the trial court.

There is simply no basis for reversing it.

I feel that at this point I've covered almost everything that the city has talked about--

Unknown Speaker: Could I ask, do you believe that if some member of the community or some organization interested in law enforcement thought that the city had an inadequate training program or one that evidenced deliberate indifference or gross negligence could just bring a suit and say... a 1983 suit and say, you've got a bad program, and we want an injunction for you to measure up?

Mr. Nagel: --You mean without the occurrence of harm?

Unknown Speaker: Yes.

Mr. Nagel: No, not under Section 1983.

Unknown Speaker: So the inadequacy in the program does have to be the cause of some injury?

Mr. Nagel: By the language of the statute.

Unknown Speaker: Yes, all right.

Mr. Nagel: I mean, the statute gives a cause of action if someone causes a constitutional deprivation.

Unknown Speaker: And so, in this case, certainly one of the issues here, even if you're right on the standard, does the evidence... does the case... was there an injury that demonstrated gross negligence?

Mr. Nagel: Well, you know--

Unknown Speaker: Or whatever the standard was that was approved.

Mr. Nagel: --The officer who filed the shot--

Unknown Speaker: Well, see, there is an issue of that in this case.

Mr. Nagel: --Well, yes, there's no issue, or no question--

Unknown Speaker: As to causation.

Mr. Nagel: --that constitutional deprivation occurred.

Officer Perry... there was a judgment of $1 against the man who pulled the trigger in this case, and $500 for punitive damages.

Unknown Speaker: Well, it wasn't a constitutional violation unless there was a... as the Court of Appeals said... a grossly negligent training program, and that training program was responsible for the injury.

Mr. Nagel: In other words, as I understand your question, the fact that the constitutional violation occurred does not necessarily mean that it was caused by the city?

Unknown Speaker: Well, that's right.

But what constitutional violation was there?

Mr. Nagel: There was a deprivation of life without due process of law, a summary execution.

Unknown Speaker: Well, I know, but that is not... well, without due process of law.

I thought that meant that there had to be... in this case, that it had to be a grossly... it had to be caused by a grossly negligent training program before there was a constitutional violation.

Mr. Nagel: In the case that is here on appeal, that is true.

I don't think you can separate--

Unknown Speaker: Well, don't say then it's clear that there was a constitutional violation here.

Mr. Nagel: --By the city?

Unknown Speaker: Yes.

Mr. Nagel: Well, I think it's clear on the evidence.

Because there's testimony that these guys were not trained.

Unknown Speaker: Well, I know you do.

But that's one of the issues.

Mr. Nagel: Yes.

Unknown Speaker: Yes, but everybody agrees, don't they, that there was a constitutional violation caused by the police officer acting under color of law.

Mr. Nagel: That's correct.

Unknown Speaker: That's not in dispute, is it?

Mr. Nagel: And I don't think anybody would argue that it was negligent.

He testified that he--

Unknown Speaker: The only question is whether the city itself committed a constitutional violation?

Mr. Nagel: --Well, not merely by the fact that the officer committed one.

That would be repsondeat superior.

And we're not arguing for that.

There may be good reasons why you'd want to consider that.

But that wasn't how we litigated this case below, and it's not how we're litigating it here.

But the jury looked at all of this evidence.

The jury are the people under the Seventh Amendment, and under the rules of construction that have always applied in the review of the motion j.

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v, which I submit is all that's really here.

They thought there was plenty of evidence.

And the Court of Appeals, noting that defendant... or rather, the plaintiff in a police brutality case is always going to be in a position that he's going to be accused of being this kind of felon, or being that kind of felon.

Of having done various dangerous things, and as trial counsel said, of having garbage heaped upon his grave.

The Court of Appeals said, nonetheless, if they find someone who's that unsympathetic a plaintiff, and they find for him, and they find the defendants liable, we do not lightly contemplate reversal.

Now this is a Springfield jury that drives down the Springfield streets and pays the taxes that's going to pay the Springfield judgment.

Unknown Speaker: Suppose the police officer is merely negligent.

That's bad conduct, I must say, especially if he took somebody's life.

But say he's merely negligent.

Mr. Nagel: Under Daniels and Davidson, there'd be no claim against the police officer.

Unknown Speaker: All right.

But then, what if it is proved that the city had a grossly negligent training program, and that this officer hadn't been properly trained?

Mr. Nagel: And that that training amounted to gross negligence and caused his negligence?

Unknown Speaker: Well--

Mr. Nagel: I think now... I think that's the kind of can of worms that we're opening up if we try to have special rules of culpability for each defendant in a 1983 case.

Unknown Speaker: That doesn't necessarily mean that he knew he was breaking the law or anything else.

He was just... he made a mistake of judgment.

Mr. Nagel: --Well, he'd also been trained that he was able to do this.

And that was what the rules allowed him to do.

I don't think there was any question that he was acting... and again, in the answer to the complaint, the city said at all times--

Unknown Speaker: That's right.

He was doing what he was supposed to do?

Mr. Nagel: --Right.

Unknown Speaker: Mr. Nagel, can I ask you one more question about what you would agree is before us?

I understand it's your position, is, that issues relating to the standard of care and the instruction are definitely not here, but you do agree that the first question presented by the cert petition, whether the inadequate training is a viable theory of municipal liability, that that is here.

Mr. Nagel: I'm not sure about that one, to be frank with you.

We have not... we did not raise rule 51 in our opposition to cert on that question; but did not realize that we were going to be arguing about something that the city had asked for an instruction about, and, beyond the rule 51 question, there is the issue of invited error, because this was also an instruction that they asked for.

It's a standard they incorporated in their motion for j.

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v and their motion for a directed verdict.

In the middle of trial, they filed a motion--

Unknown Speaker: Your short answer, you do not accept that that's necessarily before us?

Mr. Nagel: --Not necessarily, no.

Thank you.

Rebuttal of Edward M. Pikula

Chief Justice Rehnquist: Thank you, Mr. Nagel.

Mr. Pikula, do you have anything further?

You have eight minutes.

Mr. Pikula: Just one point I would like to make.

And that is, the First Circuit found that Respondent's theory that the Springfield... the City of Springfield had a policy to permit the use of deadly force whenever technically permitted by the rules was not sufficiently proven or sufficiently linked to the harm to impose liability.

Unknown Speaker: Mr. Pikula, can I ask you a question that goes to the last point just made?

Your first question presented in your petition does read, whether inadequate training of police officers is a viable theory of municipal liability under 42 U.S.C. 1983.

Does the petition contend... I didn't read it as contending... that under no circumstances, training can be a theory of municipal liability?

In other words, I'm not sure that the text lives up to the billing.

It says, whether it can be a viable theory.

But does your petition assert that you were going to argue that training can never, under no circumstances, be a theory of liability?

Mr. Pikula: No, I don't think we're urging the Court to adopt that broad a rule.

If training intends or permits unconstitutional acts, then that would violate the Constitution.

Unknown Speaker: So then I don't really know what the question presented means, whether it is a viable theory... I don't like "viable" anyway.

I don't understand what it means here.

What did you mean by it?

Mr. Pikula: Basically, whether a general allegation that the city just didn't train its officers well enough to prevent this incident is a basis of liability.